1. KHILJI ARIF HUSSAIN, J.---By an application under Order XIV(2) read with section 151, C.P.C. The defendant requested that issues Nos.
2. 1, 2, 3 and 13 be heard and decided as legal issues in the first instance while decision on other factual issues be postponed. It was further requested that issue No,13 be heard and decided as preliminary issue, prior to issues Nos. 1, 2 and 3 as the decision on this issue is crucial for further progress in the matter.
3. Another application under section 151, C.P.C. (C.M.A. No,601 of 2007) was filed by the defendant praying that the learned Commissioner Mr. Justice (Retd.) Saleem Akhtar may be directed not to permit the playing of video recordings/tape-recordings/audio compact discs or introduction of transcripts during the cross-examination of defendant No,1 pending the decision on the issue of admissibility of such recordings under Article 164 of the Qanun-e-Shahadat Order, 1984. Defendant No,3 also filed application under Order XIV(2) read with section 151, C.P.C. (C.M.A. No,1360 of 2007) praying to decide issue No,13 as a preliminary issue and issues Nos. 1, 2 and 3 as legal issues.
4. Notices were issued to the learned counsel for the plaintiffs, counter-affidavits and rejoinder affidavits have been filed by the respective parties.
5. Heard M/s Iqbal 'Qazi and Liaquat Merchant, learned counsel for defendant No,1, Mr. Zahid F. Ebrahim, learned counsel for defendant .
6. No,3, Miss Sana Minhas, learned counsel for plaintiff. No,2 and Mr. Adnan Chaudhry, learned counsel for plaintiff No,1.
7. Brief facts for the purpose of deciding listed applications are that on 10-9-2004, the plaintiffs filed suit for declaration that they are shareholders of 1/3rd shareholding of total paid-up capital of defendant No,2 and that defendant No,1 is a trustee for all intents and purposes of the shareholders including the plaintiffs for all the nominees of defendant No,2 and further sought declaration that the extraordinary general meeting scheduled for 14-9-2004 for removal of plaintiffs Nos. 1 and 2 as directors, as illegal and mala fide.
8. On 3-6-2005 consent issues were filed by the learned counsel for the parties which were accordingly adopted with direction to file documents and list of witnesses within a week. Mr. Justice (Retd.) Saleem Akhtar was appointed as Commissioner to record the evidence of the parties and the parties were directed to file affidavits-in-evidence of their respective witnesses.
9. On 15-2-2006, an application under Order XXVI, Rules 2 and 4, C.P.C. Was filed by the plaintiff that they have filed affidavits-inevidence of foreign witnesses to whom plaintiffs proposed to examine as expert witnesses and since the said witnesses are unable to appear before the learned Commissioner in Pakistan, the learned Commissioner may be directed to record the cross-examination of said four expert witnesses at London, UK. The application was disposed of by the following consent order dated 17-3-2006:
(1) By consent this application is granted on the following terms:
(i) The learned counsel for the plaintiffs and the learned counsel for the defendants will cross-examine expert witnesses of respective parties, whose affidavits-in-evidence have already been filed by them; and
(ii) The learned counsel for the parties can cross-examine expert witnesses and on the evidence like video-recording, tape recording, audio compact disc, transcript, etc. Filed before the learned Commissioner subject to admissibility of the said evidence, to be determined by the learned Single Judge at the time of arguments whether the said evidence is admissible in terms of Article 164 of Qanun-e-Shahadat. The video-. Recording, tape-recording, audio compact disc and transcript shall be separately marked as Exs. X- 1, X-2, etc. Till the issue about their admissibility is determined by the learned Single Judge.
10. Office is directed to forward a copy of this order to the learned Commissioner."
11. After recording evidence of plaintiffs and four (forensic) expert witnesses defendants witness came in the witness box and during the cross-examination the plaintiffs wanted to contradict them with the audio-recordings, marked Exh.X by the learned Commissioner, in terms of order dated 17-3-2006.
12. The defendants tiled listed applications praying that the issue pertaining to admissibility of audio video-recording be decided first as preliminary issue.
13. Apart from various issues framed by the Court, the issues, for which the defendants requested to decide as preliminary issues, read as under:
(1) Whether the suit is barred by limitation and is liable to be dismissed as such?
(2) Whether the plaint in suit is liable to be rejected under Order VII, rule 11, C.P.C.?
(3) Whether the suit is barred in view of the decree passed in Suit No,485 of 1975?
(13) Whether or not audio-tape and transcripts thereof of alleged conversations between the plaintiffs and the defendant No,1 and between the plaintiffs and defendant No,3 allegedly recorded by or under instructions of the plaintiffs are admissible in evidence?
14. The learned counsel for the parties argued that only issue No,13 may be decided as preliminary issue.
15. Mr. Iqbal Qazi, learned counsel for defendant No,1, vehemently argued that the audio cassette/compact disc, which plaintiffs want to produce, are inadmissible evidence and cannot be introduced during the cross-examination of defendant No,
1. It was contended by the learned counsel that video recording/tape-recording/audio compact disc can be easily manipulated and such evidence cannot be relied upon. The learned counsel contended that under Article 164 of the Qanun-e-Shahadat Order, 1984 only in such cases as court considers appropriate, the Court may allow to produce any evidence that may become available because of modern devices or techniques and not otherwise, it was next contended by the learned counsel that Article 2(c) of Order, 1984 defines "evidence" and since video/audio-recording does not fall within the definition of Article 2(c)(ii) of the Qanun-e-Shahadat Order, 1984, the same cannot be treated as evidence as required under Article 164 of the Qanun-e-Shahadat Order, 1984. It was contended by the learned counsel that term "documents" as defined under Article 2(c)(ii) of the Qanun-e-Shahadat Order, 1984 should be something in writing, which can be seen. The learned counsel while relying upon Article 140 of the Qanune-Shahadat Order, 1984 argued that only the statement made by witnesses in writing or reduced into writing and relevant to the matter in question, only such material can be produced during cross-examination to contradict the witnesses by his writing. Since audio-cassette cannot be termed as a statement in writing such recording cannot be used for the purpose of contradicting the defendants witness. The learned counsel further argued that the alleged audio cassette has been managed to create evidence in the suit before filing the same and in the affidavit in evidence filed by plaintiffs No,1 he has not mentioned about the same.
16. Mr. Iqbal Qazi, learned Advocate for the defendants argued that on reading Article 2 with section 3(58) of General Clauses Act one can say that audio-cassette cannot be termed as "document". It was contended that original cassette has not been produced from which conversation in question was unloaded and on three different occasions the original cassettes were not produced and objected the production of the cassette in question on the ground that in the body of plaint, the plaintiffs have not disclosed any matter regarding conversation except relied upon audio-cassette.
17. The defendant No,1 served notice under Order XI, rule 15, C.P.C. Upon the plaintiffs calling upon them to produce audio-cassettes for their inspection but plaintiffs in reply refused to produce the same and in these circumstances defendants are left with no other option but to file written statement. It was contended by the learned counsel that under Article 164 of Qanun-e-Shahadat Order, 1984, only such evidence which is procured by modern device can be produced which party himself had recorded and produced the same at an earliest opportunity and further the authenticity of which is beyond any shadow of doubt and same is required by the court. In support of his contention learned Advocate relied upon Hakim Ali Bhatti v. Qazi Abdul Hakim and others 1986 CLC 1784, Sumitra Debi Kaur v. Calcutta Dyeing and Bleaching Works, AIR 1976 Ca1.99, and Zafar Iqbal and others v. Bashir Ahmed and another PLD 1988 SC 109.
18. Mr. Liaquat Merchant, learned Advocate for the defendant No,1, argued C.M.A.No,601 of 2007 and argued that Article 164 of Qanun-e- Shahadat Order, 1984 is in two parts first that Court has to consider at an appropriate stage whether production of evidence as contemplated under Article 164 is required to be produced and only then can allow to produce any evidence that may have become available because of modern device. Learned Advocate heavily relied upon "comma" inserted by the Legislator before words "the Court may allow" in the said Article and argued that burden is upon the Court first to satisfy that in what circumstances evidence become available because of modern device should be allowed to produce in evidence. It was contended by the learned Advocate that by an amendment the legislation in England has been amended and definition of documents have been amended to include video-cassette, audio-cassette, and CD in the definition of documents whereas no such amendment has been made in Ordinance, 1984. It was contended that since the plaintiffs have failed to produce audio video-cassettes at the first available opportunity by presenting original recorded cassette in court and authenticity of the same arc not beyond shadow of any doubt and further the same has not been recorded by an independent person and were produced by expert witnesses after 22 months of filing of the suit the same cannot be accepted in evidence. It was contended that the plaintiffs did not refer about recording of conversation in the memo of plaint and only mentioned in this regard upon the documents relied. Learned advocate argued that by C.M.A. 1750 of 2005 filed on 15-3-2005 for the first time reference in respect of tape recorded cassettes were made by the plaintiffs after seven months of filing of the suit on 4-4-2005 and copies of audio tapes were filed. The plaintiffs filed affidavit in evidence in September, 2005 i,e, after one year of filing of the suit but did not tender the alleged cassettes along with his affidavit in evidence. An additional affidavit in evidence was filed on 29-10-2005 in which though the plaintiffs mentioned about the tape/audio-recording but did not tender the cassette even at this stage and for the first time the cassettes were produced by the expert witnesses during their evidence in May, 2006 i,e, after 22 months of filing of the suit. Learned advocate in support of his contention that cassette produced after 22 months cannot be accepted in evidence also drawn my attention to Order XIII, rules 1 and 2, C.P.C. And argued that all documentary evidence has to be produced on the first hearing of the suit and since plaintiffs failed to produce the same they cannot be allowed to produce cassette in evidence after 22 months of filing of the suit. In support of his contention learned Advocate relied upon the case of Hakim Ali Bhatti v. Qazi Abdul Hakim and others 1986 CLC 1784, Mst. Mariam Haji and others v. Mst. Yasmin R. Minhas and others PLD 2003 Kar.
19. 148, Smt. Jogindar Kaur v. Surjit Singh 1985 Punjab and Haryana 128(b), Lachmandas v. Deepchand AIR 1974 Rajasthan 79, Sumitra Debi Kaur v. Calcutta Dyeing and Bleaching Works AIR 1976 Cal. 99, Ghulam Fatima v. Settlement Land Commissioner (Land) Lahore and others PLD 1968 SC 147, C.R. Mehta v. State of Maharashtara 1999 PCr.LJ 2863, Abdul Ghani Shaikh and others v. Syed Muhammad Raza and others AIR 1920 Patna 610 and Partab Singh v. State of Punjab, AIR 1963 Punjab 298.
20. Mr. Zahid F. Ebrahim, learned Advocate for defendant No,3 in support of his application being C.M.A. No,1360 of 2007 and C.M.A. No,1361 of 2007 relied upon the arguments of M/s. Iqbal Qazi, and Liaquat Merchant, argued that only conversation of defendant No,3 in original has been produced and other conversation produced even through expert witnesses are copies of the original conversation.
21. Miss Sana Minhas, learned counsel for the plaintiff No,2, in reply argued that although defendant had served notice under Order XI, Rule 15, C.P.C. To produce the cassette but plaintiffs have rightly refused to produce the cassette relied upon by them, as cassettes were not mentioned in the memo of plaint and no reference has not been made in respect of the cassette in the plaint and only documents about which reference has been made either in the pleadings or in the affidavit, can be produced for inspection of other parties under Order XI, rule 15, C . P. C .
22. In reply to the objections of learned Advocate for the defendants about delay in production of the cassettes it was contended by the learned counsel for the plaintiffs that there was no delay in producing the cassettes and same were produced at the earliest possible opportunity. Miss Sana Minhas, learned Advocate for the plaintiffs, relied upon Order VII, Rule 14(2) and Order XIII, Rules 1 and 2, C.P.C.
23. And argued that only document on the basis of which suit has been filed are required to be produced in court along with the plaint and the other documents as evidence, in support of the claim have to be mentioned in the list, to be added or annexed with the plaint, as documents relied upon. It was contended by the learned Advocate that the plaintiffs have produced transcript of audio- cassette three months prior to framing of the issues which was the first date of hearing. Audio-cassettes were produced on 15-3- 2005 along with C.M.A. 1750 Of 2005 and on 3-6-2005 it was ordered that the said application will be heard along with the main suit. It was contended that after issues were framed again copies of the transcripts were filed by the plaintiff No,l. In para. 37 of the affidavit in evidence, the plaintiff stated about the conversation recorded and produced the same as Exs.23-A to 23-F and as such there was no delay on the part of the plaintiffs in producing cassettes in question. Learned Advocate in support of her contention relied upon the case of Zafar Iqbal and others v. Bashir Ahmed and another PLD 1990 SC 109, and argued that in Article 164 of Qanun-e-Shahadat Order the Legislature used the word "evidenceand "evidence" as defined in Article 2 includes all types of evidence including documents, CDs etc., by which parties can prove their claim and relied upon the case of Don Basco High School v. The Assistant Director EOBI PLD 1989 SC 128, Mushtaq Ahmed v. The State 1991 SCMR 543, Ziauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehra and others AIR 1975 SC 1788, Haji Noor Muhammad and others v. Mst. Shaheed-un-Nisa 1989 MLD 3877 and Saifur Rehman Khan v.
24. Shahbuddin 1995 MLD 1485.
25. Mr. Adnan Chaudhry, learned Advocate for the plaintiff No,1 relied upon the consent order passed on 17-3-2006 and argued that present application is premature and the question whether the cassettes should be accepted in evidence or not ought to have been decided in terms of the consent order at the time of final arguments and relied upon the definition of Article 2(e) of the Qanun-e- Shahadat Order which was added by Electronic Transmission Ordinance LI of 2002 and argued that electronic document includes, record, information, communication and transaction in the 'electronic forum and contended that the cassette, audio-tapes in view of the amendment made in the Qanun-e-Shahadat Order is admissible piece of evidence.
26. Mr Iqbal Qazi and Liaquat Merchant, learned counsel for the defendants, in reply argued that in terms of Order VII, rule 14 read with Order VII, Rule 1, C.P.C. Since plaintiffs have not mentioned in the plaint facts relating to video-cassette, CD, or tape-recording which were admittedly in possession of the plaintiffs at the time of filing of the suit and has not sued on the basis of alleged admission made in the said tape cassette the plaintiffs cannot be permitted to produce the same in support of their claim now.
27. I have taken into consideration the respective arguments advanced by the learned Advocates for the parties, perused the record.
28. Before I proceed to decide the issue in the matter I would like to briefly state the nature of dispute in the matter.
29. The plaintiffs filed suit on 10-9-2004 for declaration, injunction, specific performance and rendition of accounts in respect of the Company (defendant No,2) which was incorporated on 12-10-1972. The plaintiffs claimed one-third shareholding in the defendant No,2 company and New Jubliec Insurance Limited and in this regard family settlement was concluded between the parties. Due to some family disputes amongst the family members, the matter was referred for conciliation under the Ismaili International Conciliation and Arbitration Board and on its failure to amicably resolve the dispute, on 31-5-2002 two arbitrator& were nominated one by Mr.Akbar Ali Hashwani and others by defendant No,1 who entered upon reference on 17-10-1992. On 27-7-2004 family settlement was concluded and the litigation pending before this Court as well as before other forums were to be withdrawn vide decree dated 18-7-2004. It was alleged in para.l5 of the memo. Of plaint that at all times defendants fully acknowledged one-third entitlement of the plaintiffs in the shareholding of the defendant No,2 as heirs of their late father and by virtue of the compromise decree dated 24-12-1978 Mr. Akbar Ali Hashwani was appointed as guardian of the minor's properties and said guardian in all the cases relating to the family agreement, emphatically affirmed that the shares of New Jubilee Insurance Ltd. As well as total shares of defendant No,2 were to be divided into three equal parts. In para.18 of the memo. Of plaint it was alleged that on 3-8-2004 defendant No,3 Executive, Director and Company Secretary of the defendant No,2 held meeting in the office of defendant No,1 and informed the plaintiff No,1 that the dispute between Akbar Ali Hashwani and the defendant No,1 has been settled out of court and the latter also wants to settle the claim of the heirs of late Hassanali Hashwani (plaintiff) in respect of their share in defendant No,2 company.
30. Defendant No,3 further stated that he has been instructed by the defendant No,1 to offer to the plaintiffs a total of 766,666 shares out of total 60,00,000 shares of defendant No,1 which come to 12.78% of the total holding at a break-up value of Rs,209 per share. In para.19 meeting of defendant No,3 on 14, 19 and 21 August, 2004 have been mentioned in which he informed the plaintiffs that defendant No,1 wanted resignation of plaintiffs Nos.1 and 2 from the Board of defendant No,2 which plaintiffs refused to accept. On 3- 6-2004 by consent of the parties Mr. Justice (R.) Salem Akhtar was appointed as Commissioner to record evidence of the parties.
31. By this order I would like to decide the only question, whether at this point of time plaintiffs should or should not be allowed to play video recordings/tape-recordings/audio compact discs or refer to the transcripts during cross-examination of defendant No, 1.
32. The defendants questioned that plaintiffs cannot play recorded cassettes on the ground (1) that the plaintiffs has not filed recorded cassettes along with the memo. Of plaint, (2) that the cassettes are not admissible piece of evidence, (3) there is no undue exclamation in respect of delay in the proceeding cassettes (4) original cassettes have not been produced and secondary evidence is not admissible.
33. The learned Advocates for the defendants objected the production of cassettes in question of evidence.
34. First question which requires to be decided in about effect if not producing the cassettes along with the plaint.
35. Order VII, Rule 1, C.P.C. Provides that the plaint should contain apart from the name of the Court, name, description of the plaintiffs, name and description of the defendant, then facts constituting the cause of action, facts showing that the Court has jurisdiction and relief claimed by the plaintiffs. Order VI, Rule 2, C.P.C. Required that every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved.
36. On reading Order VII, Rule 1 read with Order VII, Rule 14 and Order VI, rule 2, C.P.C. It appears that plaintiffs while giving description of the parties also has to state concise material facts on which party pleading relies upon the purpose for his claim or defence which he wants the other parties to know what they are required to meet but not the evidence by which they are to prove. The plaintiffs claim, in the suit, is based upon family settlement between the parties and shareholding of defendant No,2 Company and the recorded cassettes are not the basis of the claim in the matter but can be a piece of evidence in support of the plaintiffs claim in the matter and the plaintiffs are not required in terms of Order VI, Rule 2, C.P.C. Read with Order VII, Rule 1, C.P.C. To disclose or produce the same along with the plaint. As regards Order VII, Rule 14, C.P.C. The plaintiffs are required to produce only those documents upon which plaintiffs sue against the defendant and the other documents in support of claim and are not the basis of the cause need not to be produced along with the plaint but the plaintiffs if want to rely upon any such documents, evidence, whether in his possession or not has to disclose the same as documents relied upon in a list to be annexed with the plaint.
37. As regards the question that the defendant has failed to produce the cassettes within a reasonable period of time it appears that the plaintiffs did not file tape/audio recorded cassettes, CD and transcript along with other documents filed with the plaint but made reference to the same as documents relied upon. It appears that in their application being C.M.A. No,1750/2005 filed on 15th March, 2005 plaintiffs produced copies of the tapes/audios CD along with their statement on 4th April, 2005 and same were produced by the expert witnesses in May, 2006 i,e, after 22 months of institution of the suit. As I have held hereinabove that the claim of the plaintiffs is not based upon audio/video tapes but they want to rely upon the same as a piece of evidence in support of their claim. On 3-6-2005 issues were framed by the Court and parties were directed to file documents within a week in support of their respective claims and much before the passing of the order directing the parties to file documents in support of their respective claims. Plaintiffs have not only produced transcript of the audio-tapes in question but also produced the same in Court. The plaintiffs filed an application under section 151, C.P.C. (C.M.A. No,1750 of 2005) seeking permission to bring on record audio/video cassettes and it was ordered to be fixed along with the main case after recording of the evidence. It is not disputed by the defendants that the entire transcript of the audio recording were brought on record by the plaintiffs within a reasonable period of time and further cassettes and CD tapes were produced along with application under Order XIII, Rule 2, C.P.C.
38. The party who failed to produce documents on the first date of hearing or if within the time granted by the Court then unless good cause has been shown for non-production of the documents on the first date of hearing such documents cannot be allowed to be produced by the party, who failed to produce the same on the first date of hearing. Nonetheless in the matter the plaintiffs relied upon cassettes in question and specifically mentioned the same in the memo of plaint as required under Order VII, Rule 14(2), C.P.C.
39. And further produced the same before the expiry of time for production of documents fixed by the Court. For the foregoing reasons, there was no delay in production of the documents by the plaintiffs.
40. In the case of Messrs Kamaran Industries v. The Collector of Customs (Exports) PLD 1996 Kar. 68, it was held that first hearing means at the time of framing of issues. The plaintiffs filed transcript of CD recorded cassettes with. His Rejoinder to C.M.A. 6259 of 2004 in March, 2005. Audio CD filed in Court along with the statement dated 4-4-2005 supplied copy of the same to the defendants. The plaintiffs produced CD and its transcript before the first date of hearing and in any case before the time fixed by the Court at the time of framing of issues.
41. As I have already hereinabove observed that the plaintiffs suit is based upon the family settlement and their entitlement of shares in the Company the plaintiffs filed documents in support of cause in the suit as Annexure la to 19 however documents which plaintiffs want to rely upon in support of their claim same have been mentioned on the foot-note of the memo. Of plaint as documents relied upon viz. Misc. Documents, files, correspondences, documents filed before the arbitrators and in legal proceedings audio tapes.
42. As regards the objection of the learned Advocate for the defendant that the cassettes produced by the plaintiffs are not admissible piece of evidence. Learned Advocate for the defendants heavily relied upon Article 164 of Qanun-e-Shahadat Order, 1984 and argued that unless the Court required if necessary such evidence cannot be allowed to produced in evidence and further that audio- cassette does not come within the definition of document and accordingly not admissible piece of evidence.
43. In order to appreciate the respective contentions of the learned Advocates for the parties, [would like to deal with the question, whether under. Article 164 Qanun-e-Shahadat Order a party can be allowed to produce evidence become available because of modern device and techniques. Article 164 of Qanun-e-Shahadat Order was introduced firstly in 1984 and prior to this repeal Evidence Act, 1872 does not specifically contemplate admissibility of evidence become available because of modern device and techniques.
44. Heading of Article 164 "provided production of evidence that has become available because of modern device" but Article itself provided that in such cases as Court may consider appropriate the court may allow to be produced any evidence that may have become available because of modern device or techniques. The Article does not require that only in the cases, where court feels it necessary first then only Court can ask the parties to produce the evidence become available because of modern device, or techniques. What Article 164 of Order 84 required is that in appropriate cases when party wants to produce evidence that may become available because of modern device, court can allow to produce the same, and it is not necessary that before allowing production of evidence become available due to modern device Court has to pass some order and give reasons, why court feels it necessary that the evidence that becomes available because of modern device should be allowed to produce in evidence.
45. Principle of production of evidence become available because of modern device and production of documents are almost identical.
46. Article 2(c) of Order 1984 defines evidence includes all statements which court permit or require to be made before it by the witness in relation to the matter of facts under the inquiry and all documents produced for inspection of court. Article 2(b) defines "documents" as any matter expressed or described upon any substance by means of letter, figure, or mark or by more than one of those means intended to be used or which may be used for the purpose of recording evidence in the matter. Although recording of evidence on phone or production of the cassette, are not specifically mentioned in the definition of documents but the Legislature while defining the "documents" clearly mentioned that same may means any matter expressed or described upon any substance by means of letter, figure, or mark or by more than one of these means. Audio-recording, video-recording in fact are marked upon the magnetic tapes which used for reproduction of voice/video. The illustration of Article 2(b) also illustrated any inscription on a metal plate or stone is a document and Magnetic tape in my humble opinion includes in the definition of documents.
47. The answer to the proposition becomes easier by incorporation of Electronic Transmission Ordinance LI of 2002 (hereinafter referred as Ordinance, 2002), by which sub-Clause (e) and (f) of Article 2 has been added in Order 1984 and making expression "automated", "electronic", "information system", "electronic document", etc. As a piece of evidence. Article 46-A of Qanun-e-Shahadat Order was also added by Order LI of 2002 providing that a statement in the form of electronic documents generated, received or recorded by an automated information, system while it is in working order are relevant facts. Likewise, Article 59 of Order 1984 which relates to opinion of experts, the opinion of the experts as to the authenticity of integrity of electronic document made by or through any information centre was also made admissible.
48. Another important amendment made in Article 73 of Qanun-e-Shahadat Order describing "primary evidence" and by new explanation, printout or other form of output of automated information system shall not be denied of status of primary evidence solely for the reasons that it was generated, set, received or stored in electronic form if the automated information system was in working order at all material times, and, for the purpose hereof, in the absence of evidence to the contrary, it shall be presumed that the automated information system was in working order at all material times. Explanation 4, added by Ordinance 2002, a printout and other form of reproduction of electronic document, other than a document mentioned in the Explanation 3, first generated, set, received or stored in electronic form, shall be treated as primary evidence.
49. Article 70(8)(a) inserted by the Ordinance 2002 required that if the electronic information was denied by the party then documents must be proved. Electronic documents as defined in Ordinance, 2002, includes documents, records etc. In electronic form and "information" has been defined as voice, sound, video etc. Article 2(1)(c) of Qanun-e-Shahadat Order, 1984 defines "evidence" but interesting to note that the Legislature has not defined that what he means by the evidence but said that evidence includes a statement that the court permits or requires to be made and/or all documents produced. It is a settled principle of law that the word "include" is always used in "interpretation clause" in order to enlarge the meaning of the word and phrase occurring in the body of a statute and as such contention of the learned advocate for the defendants that CD recorded cassettes does not come within the definition of evidence/oral or documentary have no force. Even otherwise after the amendments of Qanun-e-Shahadat Order 1984 by Electronic Transactions Ordinance, 2002, electronic generated documents and information become admissible piece of evidence.
50. In my humble view audio, video-records cassettes CDs are admissible piece of evidence, however, the authenticity of same is always subject to proof in case the party against which it can be used disputed and or denied the authenticity and information contained in the said electronic documents.
51. Coming tothe last contention of the learned Advocate for the defendants that cassettes are not the original copy of audio-recording but they are copy of copy suffice it to say that copy of an electronic generated information can be used as a preliminary evidence in view of the amendments made in Article 73 of Qanun-e-Shahadat Order by an Electronic Transactions Ordinance, 2002. Nonetheless original copy at least of mobile phone memory card admittedly empty, and one can say that the preliminary evidence has been destroyed and party is not in a position to produce the same and as such secondary evidence can be accepted in the matter.
52. The parties have examined forensic expert witness who had examined cassettes given to them and undergone lengthy cross- examination in respect of the authenticity of the cassettes. How far cassettes can be relied upon and whether there was any tampering in the cassettes produce by the expert-witnesses or not, I would not like to deal with, while deciding listed application, and confine myself only to the question whether such cassettes may allow to be played to contradict the defendants witness with their previous statements.
53. Having said so, now, I would like to deal with case-law relied upon by the learned Advocates for the parties. In case of Hakim Ali Bhatti v. Qazi Abdul Hakim and others 1986 CLC 1784, it was held that:--
(1) The tape-record had been prepared and preserved by the nephew of the petitioner. He is not an independent person and he does not belong to independent authority.
(2) The transcript from the tape-record was not prepared under independent supervision and control. The P.W. Haji Taj Din who prepared the tape-record stated in his affidavit that he handed over the cassette or tape-record to the petitioner. It was not annexed to the petition but it was produced before me by the witness himself.
(3) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it.
(4) Accuracy of what actually had to be proved and satisfactory evidence, direct or circumstantial had to be there so as to rule out possibilities of tampering with the record.
(5) The witness who had made the tape-record was not part of his routine duties in relation to election speeches but it was actually made for the purpose of laying trap to procure evidence.
(6) The first respondent disputed that the tape-recorded voice was his and stated that there had been interpolation in the record.
54. In the case of Mst. Mariam Haji and others v. Mst. Yasmin R. Minhas and others PLD 2003 Karachi 148, learned Single Judge of this Court while holding that the photographs can be admitted in evidence held that due to advancement in the technology it has to be proved that the photographs are not manipulated and manoeuvred unless it is proved that the photographs are not manipulated it could not be allowed to be produced in evidence.
55. In the case of Rup Chand v. Mahabir Prashad AIR 1956 Punjab 173, it was held that expression "writing" appearing in section 145 of Evidence Act, 1872 refers to the tangible object that appeals to the sense of sight and that which is susceptible of being reproduced by printing, lithography, photography etc. And it is not wide enough to include a statement appearing on tape which can be reproduced through the mechanism of a tape-recorder. It was further held that it is open to a person giving evidence in court to produce instrument or device used in the commission of a crime and to exhibit maps, charts, diagrams, models, photograph and X- ray, when properly authenticated in issue and held that no rule of evidence which prevents a defendant who is endeavoring to shake the credit of a witness by proof of former inconsistent statements, from depositing that while he was engaged in conversation with the witness a tape-recorder was in operation, or from producing the said tape-recorder in support of the assertion that a certain statement was made in his presence.
56. In the case of Yousuf Ali Ismail Ali Nagri v. State AIR 1968 SC 147, it was held that if the statement is relevant 'and accuracy of the recording must be proved by a competent witness and voices must be properly identified. One of the features of magnetic tape- recording is the ability to erase and re-use the recording medium. Because of this facility of erasure and re-use, the evidence must be received with caution, the court must be satisfied beyond reasonable doubt that the record has not been tampered with.
57. In the case of Lachmandas v. Deepchand AIR 1974 Rajasthan 79, it was held that, tape-recorded conversation should be placed on record at the earliest opportunity.
58. In the case of Sumitra Debi v. Calcutta Dyeing and Bleaching Works AIR 1976 Cal. 99, it was held that:-- "Before any court can accept the evidence of tape-record the court must carefully consider the genuineness of the tape before it is accepted. Usually, as it is expected to be, the tape-recording of the voice is done without the knowledge and consent of the person concerned and very often he is being trapped unknowingly into it. Therefore, anything which is born of trickery or trapping or cunningness should be very cautiously and carefully considered by the court before it is admitted and accepted. After all, ventriloquism is not very uncommon and before any court can rely on a tape-record, the court must carefully guard himself against all these possible tampering and manufacturing should look for independent corroboration and intrinsic evidence before he relies on the tape."
59. In the case of Smt. Joginder Kaur v. Surjit Singh AIR 1985 Punjab and Haryana 128, learned Judge after hearing the tape-recorded cassette did not rely upon the same for more than one reasons and not because tape-recorded cassette is admissible evidence on the contrary it was held that it is no doubt true that tape-recorded conversation is comparable to photographs and is admissible under section of the Evidence Act.
60. In the case of C.R. Mehta v. State of Maharashtara 1993 PCr.LJ 2863, it was held that tape-recorded evidence, if it is to be acceptable, must be sealed at the earliest point of time and not opened unless except order of the court.
61. In the case of Partab Singh v. State of Punjab AIR 1963 Punjab 298, it was held that mechanical process of obtaining statements recorded on tape-recorder is fraught with possibilities of such tampering as a render a statement or conversation something quite contrary to what might have been stated by the speaker originally or in the first instance.
62. None of the case-law relied upon the learned counsel for the defendant is of any help to the issue in the matter. The ratio laid down in the above referred cases are that tape record cassettes are admissible piece of evidence, but while accepting the same, extra care is to be taken to declare and satisfy that the voice is of the person alleged, and there is no tampering in the recorded statement.
63. So far as the authenticity of recorded cassettes are concerned forensic experts has appeared in the witness-box and undergone lengthy cross-examination of the learned Advocates for the parties whether conversation in the recorded cassette should be relied upon or whether same is in the voice of the defendants or whether there is tampering in it or not or whether any part of the conversation was erased while recording the same can be answered only after defendants make a statement in this regard.
64. In the case of Ziyauddin Burhanuddin Bukhari v. Brij Mohan Ramdas Mehra and others AIR 1975 SC 1788, the Hon'ble Indian Supreme Court held that recorded cassette can be relied upon it same has been prepared and preserved safely by a independent authority, the police, and not preserved by a party to the case; secondly, the transcript from the tape-records, shown to have been duly prepared under independent supervision and control very soon afterwards, made subsequent tampering with the cassettes easy to detect, and thirdly, the police had made the tape records as part of its routine duties in relation to election speeches and not for purpose of lying any trap to procure evidence.
65. The principle laid down in the above referred case is also not attracted in the circumstances of this matter as the criteria of evidence in the election disputes are different than the dispute between the two individuals even otherwise at this stage I am not deciding the question whether the tape-recorded evidence should be relied upon as an evidence or not but I am confining myself only to the extent whether to contradict the defendant same may be allowed to play before him or not. The best person who can make a statement about the authenticity of the conversation in tape is the defendant himself and the basis of his statement that there was any tampering whether voice in the record cassette is his voice or not, whether there was any editing in the conversation or not can be decided.
66. In the case of Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1976 SC 57, the Hon'ble Supreme Court, accepted the tape-recorded speech as a valid piece of evidence as the concerned officer has identified the voice of the person speaking By adding Explanation to Article 30 of Qanun-e-Shahadat by Order 2002, statement generated by the automated information system made admissible to prove an admission made by the parties. Under Article 30 Qanun-e-Shahadat Order, 1984 admission, information is being defined as a statement oral or documentary which suggested any inference as to fact in issue or relevant facts which is made by any person and now by adding Explanation Article statement generated by automated information system can also be used as an admission by any of the person. In terms of Article '59 of Qanun-e-Shahadat Order, 2002 opinion of a forensic witnesses relating to authenticity or integrity of electronic document made by or through any information system also made admissible. 'from the Explanations 3 and 4 to Article 73 of the Qanun-e-Shahadat Order, 1984 relating to preliminary evidence, .It is evident that printout or other form of reproduction of another electronic document be made admissible in evidence as preliminary evidence.
67. Electronic Transaction Ordinance, 2002 electronic document has been admissible as a preliminary evidence in a matter, and tentatively in my view reproduction of a electronic documents cannot be termed as copy or secondary evidence. Having said so even otherwise expert witness JP French Associates Forensic Speech and Acoustics Laboratory gave details of the origin, history and provenance of the recordings, as under:-- Event No,Recording MethodFirst Transfer Second Transfer Third Transfer
1. Micro-cassette RecorderTape to audio CDs using Philips CD recorderAudio CDs to computer as MP3 files MP3 files from computer to external
2. Micro-cassette RecorderN/A N/A N/A
3. Nokia 9210 i From phone to computer as .wav file .wav file from computer to external hard drive N/A
4. Nokia 9210 i From phone to computer as .wav file .wav file from computer to external hard drive .wav file from external hard drive to USB memory stick
5. Nokia 9210 i From phone to computer as .wav file .wav file from computer to external hard drive .wav file from external hard drive to USB memory stick
6. Nokia 9210 i From phone to computer as .wav file .wav file from computer to external hard drive .wav file from external hard drive to USB memory stick One of the expert witnesses in his statement in reply to a suggestion that the copies, duplicates cannot be authenticated and are normally not accepted by an International Investigating Agency replied as under:-- "It is possible to examine copies recording and make comments on their contents however in conclusion drawn cannot necessarily be applied to original copies which they are copies of"
68. In this case item 3 and 4 did not fall under the same category as copy tapes, there could be more accurately referred to a digital colons of the original recording.
69. I cautiously would not like to discuss the question whether the cassettes examined by the expert witnesses cannot be termed as copy/secondary evidence or they are merely transfer of the information from one instrument to another instrument and leave it to be dealt with in detail at the time whether these cassettes can be relied upon or accepted, at the time of final arguments as parties agreed while passing order 17-3-2006.
70. What plaintiffs want by playing cassettes during the cross-examination of the defendant's witness is to contradict him with his previous statement only and it is for the defendant to make appropriate reply in regard to statement recorded. On cassettes/CD and perhaps thereafter in the light of the reply by the defendant the Court can decide to what extent statement can be relied upon, keeping in view forensic expert evidence.
71. For the foregoing reasons, listed applications are dismissed, however, in case plaintiff decided to contradict the defendantswitness with conversation on the cassette then it is advisable that such question and reply be recorded on separate sheet and placed on separate folder so that at the time of deciding the Issue No,3 if deem necessary learned Judge can look into the statement.